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Against Monopoly
As noted here, “Ayn Rand’s newsletters used to end with a “Horror File” of monstrous but true quotations.”
Along those lines, it’s time to collect some choice trademark horror stories in one place. The main post will be here, on the Mises Blog, but I’ll cross-post the initial post here too. But look there for updates (or to add suggestions in the comments). (Update: I have modified this post to also include outrageous examples from patent, copyright, and trade secret law. See below.)
Trademark
As noted in Trademark versus Copyright and Patent, or: Is All IP Evil?, it’s not only patent and copyright that are unlibertarian and unjust. Modern trademark law is as well. I deal with tradmark rights on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, extensions of trademark law–rights against “trademark dilution” and cybersquatting, etc.–are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution.
But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of “consumer confusion” is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark “owners” to sue “infringers” (except perhaps as proxy for customers, when consent can be presumed or proved–as I discuss in this interview: Free Talk Live Interview on Reducing IP Costs (Jan. 20, 2010)), and treating this as a case of the customer’s right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that “knockoffs” are usually not a violation of anyone’s rights: the buyer of a $10 “Rolex” is almost never defrauded–he knows what he’s getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.
The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous.
In any event, on to a collection of trademark outrages for the horror files (some of these are also listed in Reducing the Cost of IP Law):
- Court Says U Of Southern California Only One Who Can Use USC; Sorry U Of South Carolina
- Who Dat? America’s National Football League causes outrage over catchphrase ban
- What’s Next–Trademarking Language? Don’t be *Ridiculous*!
- South Butt David versus North Face Goliath
- Lou Carlozo, Teen’s charity name draws the McIre of McDonald’s, Wallet Pop (Jan. 17, 2010) (McDonadl’s claims Lauren McClusky’s use of “McFest” for the name of a series of charity concerts she puts on infringes its “McFamily” brand)
- Budweiser trademark dispute (see also Chip Wood, A Bully-Boy Beer Brewer, Straight Talk (Oct. 16, 2007))
- 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (Sept. 26, 2007)
- Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007)
- idem, Beemer must be next… (BMW, Trademarks, and the letter “M”), Mises Blog (Mar. 20, 2007)
- idem, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007)
- ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano,” I/P Updates (Feb. 27, 2008)
- Mike Masnick, Engadget Mobile Threatened For Using T-Mobile’s Trademarked Magenta, Techdirt (Mar. 31, 2008)
Patent
Taken (in part) from my article Radical Patent Reform Is Not on the Way, Appendix: Examples of Outrageous Patents and Judgments:
Examples of (at least apparently) ridiculous patents and patent applications abound (more at PatentLawPractice):
- Amazon’s “one-click” patent, asserted against rival Barnes and Noble;
- Cendant’s assertion that Amazon violated Cendant’s patent monopoly on recommending books to customers (since settled);
- The attempt of Dustin Stamper, Bush’s …